1. Making The DMCA Work For YouThe Ten Things You Can Do (And the Two Things You Can’t) By Debbie Rose Intellectual Property Fellow Association For Competitive Technology (c) Innovators Network 2009.

2. DMCA Background DMCA= Digital Millennium Copyright Act which was signed into law in 1998. U.S. signed two international treaties requiring countries to make laws against unauthorized access to copyrighted works in digital format. DMCA gives copyright owners legal remedies against someone who “circumvents” or breaks digital locks used to prevent unauthorized access to or use of their works. DMCA was, and still is, controversial. (c) Innovators Network 2009.

3. Why Should You Care? Innovators want to create new and cool products and services. Innovation often builds on existing technology to provide access to entertainment products. Innovators of new technology need to be aware of the DMCA prohibitions and the exemptions which allow many uses of copyrighted material. Success = not sued. (c) Innovators Network 2009.

4. One of TWO Things You Can’t Do May not circumvent a digital lock on copyrighted material. Circumvent= descramble, decrypt, avoid, bypass, remove, deactivate or “hack” It is the electronic equivalent of breaking a digital lock. Prohibition on circumvention has been narrowly construed by the courts: 1) requires a relationship between circumvention and infringement; 2) requires protected material to be copyrighted (c) Innovators Network 2009.

5. Second of TWO Things You Can’t Do 2. May not make devices intended for “hacking” or circumvention. Can’t manufacture, import, sell or offer to the public any technology, product, service, device that is primarily designed and marketed as a way to get unauthorized access to copyright works. Cable TV analogy: No black boxes. (c) Innovators Network 2009.

6. The Ten Things You CAN Do AUTHORIZED ACCESS- You can circumvent to make use- such as making a copy for purposes fair use- if you have permission to access the work. INEFFECTIVE TECHNOLOGICAL MEASURE- Legal remedies available to copyright owners only if they use locks that work. (c) Innovators Network 2009.

7. Ten Things You CAN Do, cont… REVERSE ENGINEERING or INTEROPERABILITY- You can circumvent if identifying and analyzing program code in order to achieve interoperability with other independently created programs. ENCRYPTION RESEARCH- You can circumvent in order to find and analyze flaws and vulnerabilities in encryption technologies. (c) Innovators Network 2009.

8. Ten Things You CAN Do, cont… SECURITY TESTING- You can circumvent to get access to a computer, system or network if engaged in good faith testing of security flaws. MAKE TOOLS THAT DO NOT MEET THE TEST- You can make tools or devices that might be capable of circumvention so long as that is not the primary purpose. Intent is the key. (c) Innovators Network 2009.

9. Ten Things You CAN Do, cont… MAKE TOOLS FOR REVERSE ENGINEERING- You can make circumvention tools necessary to analyze program code in order to achieve interoperability with independently created programs. Example: Disassemblers and debuggers. MAKE TOOLS FOR ENCRYTION RESEARCH- You can make circumvention tools necessary to analyze flaws in encryption technologies. (c) Innovators Network 2009.

10. Ten Things You CAN Do, cont… MAKE TOOLS FOR SECURITY TESTING- You can develop tools to allow you to access a computer, system or network for testing a security flaw. CAN REQUEST NEW EXEMPTIONS- DMCA includes a “safety net” which allows the public to request new exemptions every three years. Must show DMCA is or is likely to adversely affect ability to make fair use. Six more exemptions in effect through 2009. (c) Innovators Network 2009.

11. Here’s a Hypothetical Product: Service to restore access to legitimately acquired music, movies, games, software, or books from an out of business online entertainment service. Problem: Discover that product has the ability to access content not legally acquired. Question: Does this product violate the DMCA? Answer: Maybe not. (c) Innovators Network 2009.

12. Check List Primary Purpose- Was device primarily designed to enable unauthorized access to copyrighted works? Commercially Significant Purpose- Does device have limited commercially significant value other than “hacking”? Marketing the Product- Does marketing of device focus on “hacking” functions? Corrective Actions- Did I stop distributing device when I learned it was primarily being used to circumvent? (c) Innovators Network 2009.

13. Example: Blizzard v. Samba Blizzard- Violated the DMCA because it violated software licenses against reverse engineering and the purpose of the product was to avoid restricted access, not to enable interoperability of independent program. Samba- Did not violate DMCA because it didn’t violate license restrictions, used a network sniffing tool, distributed an independently created program, and the product did not constitute copyright infringement. (c) Innovators Network 2009.

14. Conclusion Ten years of exponential growth in technology since the DMCA was enacted. As always, talk to a lawyer. Hopefully, this will encourage you to jump onto the technology super highway , knowing that there are lots of ways to develop great new products and services that will bring you success and enhance the lives of people everywhere! (c) Innovators Network 2009.